Madras High Court
Syed Amin Khalandar vs The Director Of Collegiate Education ... on 4 April, 1997
Equivalent citations: 1997(2)CTC87, (1997)IILLJ287MAD, (1997)IIMLJ547
Author: T. Jayarama Chouta
Bench: T. Jayarama Chouta
ORDER
1. In this Writ Petition, the petitioner has prayed to issue appropriate Writs, Orders or Directions and in particular issue a Writ in the nature of Certiorarified Mandamus after calling for the concerned records from the third respondent pertaining to their proceedings in reference No. D. 1831/C/88 and quash the order dated June 6, 1988 and consequently direct the respondents to continue the services of the petitioner till May 31. 1989.
2. The brief facts necessary for the disposal of the above writ petition are as follows : The petitioner who was working in the third respondent college as "Librarian" has reached the age of superannuation on June 9, 1988. The post of "Librarian" is categorised as "Teacher" under Section 2(10) of the Tamilnadu Private College (Regulations) Act, 1976 (hereinafter referred to as the Act). Under Section 17 of the said Act, the Government is empowered to prescribe the service condition of the teachers employed in private colleges and that includes fixation of age s of retirement. The third respondent college is a "private college" within the meaning of Section 2(8) of the Act. The service conditions of the teachers working in private colleges in the State of Tamil Nadu are governed by the above Act and the Rules framed thereunder.
3. The Government of Tamil Nadu by their order in G.O.Ms. No. 281, Education Department, dated February 13, 1981 have prescribed the age of retirement for teachers working in private colleges as 58 years. By the very same order, they have also made it clear that in the event of the retirement age falling in the middle of the academic year the services of such teachers should be continued till the end of the academic year. Under the said order no discretion is vested with any authority to modify the terms as provided. Further, in order to avoid any ambiguity the Act itself defines the term 'academic year' under Section 2(1) of the Act. By the said definition the "academic year" means the year commencing on the first day of June.
4. In view of the fact that the age of superannuation falls on June 9, 1988, the petitioner is entitled to continue in the post of Librarian in the third respondent college till May 31, 1989 as per the orders of the Government. On April 22, 1988 the petitioner made a representation with the second respondent asking for his orders to continue in service till May 31, 1989. The said letter was communicated with the recommendation by the third respondent vide their letter dated April 25, 1988. In the said letter, it was stated that the petitioner is entitled to continue in service and necessary orders were sought for from the second respondent. The second respondent without even passing any order returned the request made by the third respondent with an endorsement dated April 29, 1988, stating that no such permission can be given. In accordance with the communication received from the second respondent, the third respondent by an order dated June 6, 1988 has informed the petitioner that he will retire from service with effect from June 30, 1988.
5. As against the said order of the third respondent, the present writ petition has been filed.
6. On behalf of the respondent, the Director of Collegiate Education has filed a counter affidavit denying all the allegations made in the affidavit filed by the petitioner except those which are specifically admitted by him. He has stated that "Librarians" in the Government colleges are now considered as non-teaching staff. Government in their letter No. 106727/22/82-2, dated March 29, 1988 have stated that the question of considering the "librarians" in aided colleges as teaching staff is a general issue and could be decided based on the final orders to be issued in respect of librarians in Government colleges, which is separately under consideration.
7. According to the G.O.Ms. No. 281, Education dated February 13, 1981, the age of retirement of aided college teachers shall be 58 years for the purpose of assessment of grant. No teacher shall be permitted to continue beyond 58 years for the purpose of assessment of grant. Those who attained the age of 58 years in the middle of the academic year shall however be permitted to continue till the end of the academic year. The above rule will apply only to the category of teachers. According to Section 17 of the Act, Government have every power to make rules in consultation with the University in the matter relating to conditions of service of the employees of private colleges. The order relating to the age of retirement passed within the purview of condition of service, according to the G.O.Ms. No. 281, Education dated February 13, 1981, aided College teachers shall be reemployed upto the end of the academic year. But since, the question of treating Librarians as teaching staff is under the consideration of the Government, the petitioner was not re-employed upto the end of the academic year. On these grounds, he has prayed this Court to dismiss the writ petition as devoid of merits.
8. I have heard Mr. K. Chandru, learned counsel for the petitioner. He submitted that the respondents 2 and 3 have no discretion vested with them to reject the request of the petitioner to continue the services till the end of the academic year as long as librarian is categorised as a teacher under Section 2(10) of the Act. It is submitted that the third respondent who is a private college within the meaning of Section 2(8) of the Act and under Section 17 of the Act, the Government is empowered to prescribe the service conditions of the teachers employed in private colleges and that includes fixation of age of retirement. In this connection, he has invited my attention to the judgment of this Court in W.P. No. 1107 of 1979 decided on November 17, 1981, wherein this Court after interpreting Section 2(10) of the Act and Section 2(j) of the Tamil Nadu University Act, has held that in the light of the definition of teacher found under the two enactments, the librarian has to be treated only as a teacher and not otherwise.
9. He has further submitted that instead of complying with the said decision to deviate the said decision, the Government has passed another G.O.Ms. No. 1489, Education Department, dated November 5, 1990, which reads as follows :-
"According to the definition of the term 'teachers' as provided in Section 2(10) of the Tamil Nadu Private Colleges (R) Act, 1976 (President's Act 19 of 1976) the term 'teacher' includes Librarians. In the G.O. first read above it has been ordered that the age of retirement of teachers of the aided colleges shall be 58 years for the purpose of assessment of grant and that those who attain 58 years in the middle of the academic year shall be permitted to continue till the end of the academic year. However, the above G.O. was not issued invoking the powers under the above said Act and as the expression 'teaching staff' has not been defined in the above G.O. it cannot be said to include Librarians. Hence the Director of Collegiate Education has requested the Government to issue orders permitting the librarians of aided colleges on par with the teaching staff for re-employment upto the end of the academic year concerned, even after attaining the age of 58 years.
2 The Government have examined the proposal carefully. The Government continue the services of those teachers who attain 58 years in the middle of an academic year, till the end of the academic year in order to have continuity in teaching and to maintain academic standard. But since librarians are on the administrative side and stand on a different footing and hence the Government do not o consider it necessary to extend the concession granted in the G.O. first read above to the Librarians of aided colleges".
10. The above said Government Order was challenged before this Court in W.P. No. 8017 of 1992 and this Court by its order dated January 24, 1994 allowed the writ petition by quashing the said Government Order. The learned Advocate also pointed out that the said decision has been followed by this Court in W.P. No. 15097 of 1994 decided on September 29, 1994. On these grounds, the learned advocate for the petitioner submitted that the present writ petition is entitled to be allowed.
11. On the other hand, the learned Government Advocate appearing on behalf of the respondents took me through the counter affidavit and submitted that in view of G.O.Ms. No. 1489, Education Department, dated November 5, 1990, wherein the benefit extended to the teachers has not been extended to the administrative side which stands on a different footing. The petitioner being the librarian cannot get the said benefit. According to her, librarians are not the teaching staff and they are only on the administrative side and hence, the concession shown to the teachers permitting them to continue till the end of the academic year will not be available to them. She has further submitted that under Section 17 of the Act, Government has every power to make rules in consultation with the University in the matter relating to conditions of service of the employees of private colleges and the question of treating librarians as teaching staff is under consideration of the Government.
12. After hearing the rival submissions, perusing the affidavit and counter affidavit and the provisions of the Act, I am of the opinion that the respondents are not justified in not extending the services of the petitioner till May 31, 1989 i.e. till the end of the academic year. As long as librarians are included in the definition of teacher, then they have to be treated only as teacher and not otherwise. Section 2(10) of the Act defines teachers as follows :
"Teachers" means such Professors, Assistant Professors, Readers, Lecturers, Demonstrators, Tutors, Librarians and other like persons as may be declared to be teachers by the statutes framed under any law for the time being in force governing a University"
Similarly, 'teacher' has been defined in Section 2(j) of the Tamil Nadu University Act, 1923, which reads as follows :
"Teachers" means such Professors, Assistant Professors, Readers, Lecturers, Librarians and other like persons as may be declared by the statutes to be teachers".
In excluding the librarians from the purview of G.O.Ms. No. 281, Education Department, dated February 13, 1981 and denying the concession to librarians to retire till the end of the academic year on their superannuation is discriminatory and violative of Article 14 of the Constitution of India. G.O.Ms. No. 281, Education Department, dated February 13, 1981 has been clarified under the order in G.O.Ms. No. 1489, Education Department dated November 5, 1980, which has been extracted above. The said Government Order has been struck down by this Court. When Act 18 of 1976 and Tamil Nadu University Act, 1923 define 'teacher' including 'librarians', the petitioner being a librarian, I cannot understand how the Government can alter or withdraw the concession by means of an executive order. Therefore, I am unable to agree with the Government Advocate.
13. Even assuming that the conditions of service can be different for the post of librarians and teachers, that could be done only after consulting the University concerned. It is seen that even before the original Government Order passed by the Government in G.O.Ms. No. 281, Education Department, dated February 13, 1981, the University was consulted and subsequent Government Orders seem to have been passed without consulting the University. As per Section 17 of the Act, change or alteration of the service conditions could be done only after consulting the university. In this case, it has not been done. That apart, a statutory provision cannot be modified or clarified by means of an executive order. For all the reasons, I allow this Writ Petition. The respondents are directed to pay the salary till the end of May 31, 1989, within a period of eight weeks from the date of receipt of a copy of this order.